We regularly prepare amicus briefs to inform appellate courts about how their decisions will affect individuals and businesses who are not parties to the case. Our amicus briefs advance arguments to move or clarify the law in ways favorable to our clients, for example, by explaining how other jurisdictions handle similar issues more fairly or efficiently. On numerous occasions, appellate courts have directly adopted or approved the arguments advanced in our amicus briefs. (E.g., Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 71; American Financial Services Ass’n v. City Of Oakland (2005) 34 Cal.4th 1239, 1256, 1259; Blue Ridge Ins. Co. v. Jacobsen (2001) 25 Cal.4th 489, 503.)
An effective amicus strategy may involve filing a single brief in a critically important case, or it may involve a comprehensive effort to shape the law as it develops through a series of related cases. For example, our briefs led the campaign, through multiple appeals to the California Supreme Court, to establish the constitutionality of legislation capping damages in medical injury cases, MICRA.
In addition to amicus briefs, our attorneys participate in other activities designed to shape the law. We have served on committees responsible for proposing amendments and revisions to the California Rules of Court. We have been active participants in the development of California’s model civil jury instructions (CACI), frequently proposing new instructions or changes to existing instructions, and regularly commenting on proposed changes that are circulated for public comment. Our attorneys serve on bar committees that evaluate candidates for appellate judgeships. We also monitor unpublished opinions and, in appropriate cases, submit nonparty requests for publication.
Above all, we recognize that an appeal can mean more than preserving or reversing a single judgment—an appeal can be a path to achieving a larger goal, like establishing a precedent that may have a dramatic effect on a business or an industry. We assist clients in analyzing the legal landscape in which they do business. Sometimes that involves carefully considering which issues should be raised, and before which court. Sometimes it means settling, or avoiding, cases that have the potential to create bad law that will cause worse problems in the future than a single adverse judgment today. We stand ready to assist you in developing a long-term strategy to any legal issue you face.
Contact Steven S. Fleischman or H. Thomas Watson for more information about our Amicus Support and Shaping the Law practice.
Gonzalez v. Mathis
California Supreme Court amicus brief arguing, contrary to Court of Appeal's published opinion, that property owners should not be liable for injuries to contractors for injuries caused by preexisting hazardous conditions on hirer's property that were known to the contractor as of the time contractor's work commenced.Read More
Krakauer v. Dish Network, LLC
Fourth Circuit amicus brief arguing that lawsuits cannot be certified for class treatment if the proposed class includes uninjured members and that class action judgments cannot afford relief to uninjured members.Read More
Madrigal v. Allstate Indemnity Company
Amicus curiae brief on behalf of insurance trade associations addressing whether an insurer can be held liable for bad faith under a "duty to settle" theory when the insurer offers policy limits within a reasonable period of time, even if shortly after an artificial deadline imposed by a third-party claimant.Read More
Exxon Mobil Corp. v. State of New Hampshire
United States Supreme Court brief arguing that the United States Constitution's Due Process Clause prohibits Trial by Formula in state court representative actions.Read More
Dynamex Operations West, Inc. v. Superior Court
California Supreme Court brief arguing that if the Industrial Welfare Commission wage order definitions of "employer" govern whether workers are employees rather than independent contractors, those definitions are not meaningfully different from the common law test for making that determination.Read More
MHN Government Services, Inc. v. Zaborowski
United States Supreme Court brief tracing the history of California courts' application of unconscionability rules to avoid enforcing arbitration agreements, and arguing that California's unconscionability standards are preempted by the Federal Arbitration Act.Read More
Sonic-Calabasas A, Inc. v. Moreno
U.S. Supreme Court amicus brief arguing that Federal Arbitration Act prohibits courts from refusing to enforce arbitration agreements based on a concern for the vindication of state statutory rights.Read More
Lubin v. The Wackenhut Corp.
California Court of Appeal brief arguing that the United States Constitution's Due Process Clause prohibits Trial by Formula on either liability or damages issues in state court class actions.Read More
Maddox v. Nissan Motor Company, Ltd. et al.
Kentucky Supreme Court brief arguing that punitive damages should not be permitted, as a general rule, against product manufacturers who comply with all applicable government safety requirements.Read More
Bixby v. KBR, Inc.
Ninth Circuit amicus brief arguing that punitive damages cannot be imposed under state law to regulate conduct in a foreign nation.Read More
Iskanian v. CLS Transportation Los Angeles, LLC
California Supreme Court amicus brief arguing that the Federal Arbitration Act preempts the following rule of California law: that arbitration procedures are invalid to the extent they fail to vindicate California statutory rights.Read More
Sonic-Calabasas A, Inc. v. Moreno
California Supreme Court amicus brief arguing that the Federal Arbitration Act preempts California public policy and unconscionability standards that invalidate arbitration agreements where the arbitration procedures fail to satisfy certain minimal procedural requirements or unduly favor one party over the other.Read More
Sanchez v. Valencia Holding Co., LLC
California Supreme Court amicus brief arguing that the Federal Arbitration Act preempts California unconscionability standard that invalidates arbitration procedures to the extent they unduly favor one party over the other, and that in any event such arbitration procedures are not unconscionable under state law because they do not shock the conscience.Read More
Reed v. United Teachers Los Angeles
California Court of Appeal amicus brief supporting settlement agreement that halted seniority-based layoffs in low performing schools.Read More
Farmers Insurance Co. of Washington v. Moratti
United States Supreme Court amicus brief arguing that "covenant judgments" between insurance policyholders and third-party tort claimants are inherently collusive, and that Washington courts violate due process by conclusively presuming that the amounts of such judgments are the measure of damages in subsequent bad faith actions against insurers.Read More
Howell v. Hamilton Meats & Provisions, Inc.
California Supreme Court amici curiae brief arguing that the common-law collateral source rule does not allow a plaintiff to recover as medical expense damages the "usual and customary" charges billed by the plaintiff's healthcare providers when the providers agreed to accept as full payment for their services lesser amounts from the plaintiff's health insurance carrier.Read More
Chavez v. City of Los Angeles
California Supreme Court amicus brief on behalf of public interest organizations in dispute over availability of attorney fees in low-damage discrimination cases.Read More
Caso Campo Algodonero
Amici curiae brief in the Inter-American Court of Human Rights on behalf of various women's and human rights organizations, supporting claims against Mexico under the American Convention on Human Rights and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women.Read More
Johnson v. American Standard
California Supreme Court amicus brief arguing for adoption of the sophisticated user defense in California.Read More
Shell Oil Co. v. United States
United States Supreme Court amicus brief arguing that "arranger" liability under CERCLA is limited by the statute's plain language and legislative history to those who arrange for the disposal or treatment of "waste."Read More
Van Buren v. Evans
Amicus brief in the California Court of Appeal, defending the $250,000 limit on noneconomic damages in the Medical Injury Compensation Reform Act (MICRA) against new constitutional attacks.Read More